ANONYMOUS WITNESSES AND CONFIDENTIALITY CLUBS: HIGH COURT DECISION

In Kalma & Ors v African Minerals Ltd & Ors [2018] EWHC 120 (QB) Mr Justice Turner considered the issue of anonymous witnesses and confidentiality clubs. He granted six witnesses anonymity. This was subject to the identity of the witnesses being known to a limited number of representatives of the defendant, in a “confidentiality club”.

THE CASE

A number of claimants are bringing an action against the defendant for alleged extreme violence in response to two protests in Sierra Leone in 2010 and 2012.

THE APPLICATION

The claimants made an application that six witnesses be granted anonymity to mitigate the risk, or fear, that they would face reprisals. Witness statements had been served but details that could lead to their identification had been redacted.

THE CLAIMANT’S COUNTER-ARGUMENT

The defendant objected to anonymity. The claimants countered with an alternative argument that a “confidentiality club” should be set up, with only a limited number of people having access to unredacted statements.

THE RULE

CPR 39.2(4) provides:

“(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.”

THE JUDGMENT

The judge reviewed the case law and guidance in relation to anonymous witnesses and confidentiality clubs. After a detailed review he concluded:-

“THE THRESHOLD

At this stage of my analysis I must point out that the question is whether or not the evidence tendered on behalf of the claimants is sufficient even to surmount the threshold which would entitle the court even to begin to consider the competing issues arising on the question of common law fairness. Even if it is, this does not, without more, entitle the claimants to succeed in abrogating the default position of open justice. There must still follow a proper balancing exercise.

I have reached the conclusion that the relevant threshold has been passed.

I bear in mind that none of the six witnesses is a party to the action and so the relevant threshold, whilst remaining formidable, is less onerous than if they had been bringing their own claims.

Taking the evidence from each of the six witnesses separately and assessing it against the more generic evidence of the background potential for violence or the threat of violence in the event of the identities of the witnesses being made public, I am satisfied in each case that, at the very least, a genuine subjective fear of violence and/or the loss of livelihood had been made out.

It is unnecessary for me to adjudicate on the objective validity of the fears expressed by these witnesses. Indeed, if I were tempted to do so then there might arise the risk that the court could be perceived to have drawn conclusions adverse to the defence case concerning the relationship between the defendant and its employees and between the defendant and the state before having had the opportunity to hear all of the evidence on this controversial topic. There may arise cases in which such an adjudication would become necessary but this is not one of them.

The defence point that there are a number of witnesses who have not asked for anonymity is not devoid of merit but is counterbalanced by the following factors:

i) Those witnesses who are also parties to the action were, in any event, less likely to be eligible for anonymity protection for the reasons set out in R v Legal Aid Board.

ii) The level of perceived threat is bound to vary from one person to the next. Some witnesses are bound to have seen or heard about matters which make the threat appear to be more imminent to them than to others with less vivid exposure to such information.

iii) Some people are simply more robust than others. Just because a certain proportion of witnesses are prepared to reveal their identities does not mean that it is automatically inappropriate or disproportionate for the others to seek anonymity.

The fact that there is no evidence that witnesses who have revealed their identities have since come forward to complain that they have suffered reprisals is also a relevant factor. Nevertheless, the genuine fears of the six anonymous witnesses are unlikely to be significantly allayed by this. Suffice it to say that it is not necessary for them to demonstrate that the consequences which they fear would be immediate.

THE PUBLIC INTEREST

There is a strong level of public interest in open justice. The extent to which such interest is engaged in any given case will, however, vary considerably.

In this case, the relevant witnesses are not public figures but residents of small towns and villages in Sierra Leone. Their names are highly unlikely to mean anything to members of the public at large. The contents of the redacted witness statements will reveal, in respect of every witness, his job and details of his role and status in the context of the litigation as a whole. The position, therefore, is not dissimilar to that arising in Yalland as observed by Lloyd Jones LJ:

“38 We have nevertheless sought to assess whether there is here a sufficient public interest capable of outweighing the risk to the Claimants. We consider that matters such as the Claimants’ nationality, status and personal situation may make a material contribution to the public debate on the issues in this case. However, the following facts concerning these Claimants are already in the public domain…The order which we propose to make will not restrict disclosure of that information.

39 We consider that in this particular case to publish the names of the Claimants would add little, if anything, to a proper understanding of these proceedings and the issues involved. Furthermore, the issues are such that the proceedings and the result are likely to be widely reported and read irrespective of any inability to name the Claimants. This is not a case in which the grant of anonymity to the Claimants will impede public debate of the issues involved.”

Taking a similar approach in this case leads to the conclusion that the level of encroachment on the legitimate interest of the public in the event that the anonymity of the six witnesses were to be preserved would be relatively modest.

PREJUDICE TO THE DEFENDANT

The defendant contends that the preservation of the anonymity of the six witnesses would prejudice its ability to investigate the accuracy and credibility of their evidence.

To mitigate such prejudice, the claimants have conceded throughout that it would be appropriate to set up a confidentiality club the members of which would see the unredacted statements of the witnesses and thus learn their identities. Indeed, the claimants have been offering to disclose the redacted statements to identified members of the defendant’s legal team for several months, subject to the provision of suitable undertakings. Unhappily, disputes as to the appropriateness of such undertakings have led to delays which were such that, even at the time of the hearing in which the issue of anonymity fell to be determined, the defendant’s legal team had still not seen the redacted statements. During the course of the hearing, I expressed concern at the defendant’s persistent refusal to contemplate giving undertakings. This concern was allayed by the concession made by counsel on behalf of the defendant that no prejudice which might have arisen as a result of the delay would be relied upon by the defendant in support of its position on the issue of anonymity. Upon this assurance, I will make no further comment upon the substantive justification, if any, for the defendant’s continued refusal to give undertakings.

I bear in mind that when considering the option of the formation of a confidentially club the court must remain vigilant that the principles of open justice remain protected to the full extent which is compatible with the common law requirement of fairness.

Equipped with knowledge of the identities of the witnesses, the defendant’s legal team would be in a position to review their personnel files and make contact with employees and other witnesses who might be able to contribute relevant evidence. Of course, it would be more simple and straightforward for such steps to be taken without the need to preserve the identities of the witnesses from those of whom the relevant enquiries would have to be made but there is no information before me to establish that any such difficulties would be likely to be insurmountable or would materially impair the defendant’s ability to have a fair trial.

Furthermore, if the process of enquiry were to be seriously hampered by the obligation of confidence owed by member of the club there would be no reason why the membership of the club could not be expanded accordingly. Indeed, the defendant has recently identified a number of individuals whom they would wish to be members of the club on the contingent basis that, contrary to their primary case, I were to find that the formation of such a club would be appropriate. Any application to admit new members would have to be examined on its own merits.

I should also point out that, as the claimants have realistically conceded, if it should transpire in the case of any given anonymous witness that the ability of the defendant to challenge his evidence were found to have been impaired then the court would adjust the weight to be given to the evidence of such witness accordingly.

CONCLUSION

Performing, as I must, the balancing act between the various factors arising in this case, the respective significance of which I have already considered in this judgment, I am satisfied that the anonymity order should be granted. Notwithstanding the strong public interest in open justice and the potential for some level of prejudice to the defendant, the common law demands of fairness mandate that the anonymity of the six witnesses should be preserved. The impact upon the public interest and any potential prejudice to the defendant, however, can and should be mitigated by the formation of a confidentiality club the final membership of which has yet to be determined.”